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A Lovely Wedding Conundrum

The headline, copied verbatim by journalists uncritically looking to fill column-inches of space with sexy, outrageous stories and advocates eager to be thus outraged, reads: “Govt tells Christian ministers: Perform same-sex weddings or face jail, fines: Officials threaten to punish senior citizen couple – both ordained pastors – if they decline to officiate same-sex ceremonies”. Yikes.

On the face of it, that seems to raise a crisis of conscience for freedom-loving advocates of same-sex marriage like me. Yes, a same-sex couple should have the legal right to get married, but with equal if not even greater obviousness is the proposition that a religious person ought not be compelled to engage in an activity contrary to their own religion.

Looking a bit deeper than the headlines, I’ve found that the Hitching Post Lakeside Chapel is located directly across the street from the Kootenai County Clerk’s office in Coeur D’Alene, Idaho, a popular resort destination. It is owned and principally operated by Donald and Evelyn (“Lynn”) Knapp, both of whom are committed Christians (they met at Los Angeles’ Life Bible College) and both of whom are pastors ordained by some sort of larger religious organization. Note well, however, that while it appears they’ve been in this business at this location for quite some time, we are speaking now of a business entity, Hitching Post Weddings, LLC, an entity organized only very recently (September 12, 2014) and which recently merged in a Washington corporation that the Knapps also own. Other than the Knapps, it appears there is only one other employee of the entity.

The City of Coeur D’Alene had adopted an ordinance prohibiting discrimination in housing, employment, and public accommodations. Under the ordinance, a “public accommodation” is defined as “…any public place, licensed or unlicensed, kept for gain, hire or reward, or where charges are made for admission, service, occupancy or use of any property or facilities…” and the Knapps admit that their business is such a “public accommodation.” Refusal of service on the basis of sexual orientation or gender identity is a prohibited act under the ordinance. A violation of the ordinance is a misdemeanor, which means there is a theoretically jail time associated with it of up to 180 days as well as a fine of up to $1,000 per incident. This can be reduced by motion of the prosecution to an infraction, meaning that enforcement would be reduced to a $100.00 per-incident fine, with guidance that the prosecutor is to consider whether the defendant has undertaken appropriate remedial efforts after the violation.

As you might imagine, the Knapps do not want to perform same-sex wedding ceremonies in their chapel. In light of October 7’s decision by the Ninth Circuit in Latta v. Otter, striking down Idaho’s ban on same-sex marriages, the City of Coeur D’Alene has advised the Knapps that they will have to open their doors to same-sex couples seeking marriage. No same-sex couple has actually sought to services of the Hitching Post Lakeside Chapel to date, however. I don’t know one way or the other if there are other wedding chapels in Coeur D’Alene, although it would boggle my mind if there were not — it’s a beautiful location, one which would seem to attract people looking to have happy events like weddings.

So the Knapps hired the Alliance Defending Freedom, which styles itself “an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith” and which has also been described as “a Christian legal firm established by more than 30 Christian ministries to help defend “family values” and work against the ACLU” headed by one Alan Sears, a columnist for WND Daily and author of two books entitled The Homosexual Agenda: Exposing the Principal Threat to Religious Freedom Today and The ACLU vs. America: Exposing the Agenda to Redefine Moral Values. So that’s where the attorneys are coming from. Note that ADF is a different legal outfit than the one that brought the Hobby Lobby case to the Supreme Court, although as I argue below, they owe that entity a massive debt of thanks. Their legal points are valid, or not, regardless of the far-right nature of their origin, but I think it lends perspective to see the motive force behind the suit.

With ADF’s help, on Friday the Knapps and Hitching Post Weddings, LLC sued City of Coeur D’Alene, seeking an injunction against enforcement of the anti-discrimination ordinance as to same-sex marriages, and the standard other relief associated with impact litigation of this nature (most importantly being an award of attorney’s fees so that the City will pay the ADF for the privilege of having been sued by it).

Not particularly important so far as I can tell, is that the Knapps are senior citizens. That bit of the headline is a rather naked play for sympathy on an irrelevant issue. You don’t get a “get out of discrimination free” card because you’re over a particular age. But whatever with that.

Six years ago on what was then my own private blog, I explored the impact of a business having been found a “public accommodation” notwithstanding the religious principles of the people who operate it. Here’s the core of what I wrote then:

In Bernstein v. Ocean Grove Camp Meeting Association, a lesbian couple wanted to perform a civil union ceremony at a beachside facility owned and operated by a Lutheran faith organization (it appears to not be a church per se, but it affiliates and identifies with Lutheran Christianity). The New Jersey agency investigating the complaint found probable cause to permit the charge of discrimination proceed. But, in Moore v. Ocean Grove Camp Meeting Association, another lesbian couple wanted to perform their civil union ceremony at the exact same facility. In that case, no probable cause was found. Both case results were announced on the same day — [December 29, 2008].

Same facts, same defendant, same facility, decided on the same day, but different results.

What was the difference? In Bernstein, the investigation found that the religious organization that owned the facility rented it out to pretty much anyone who asked to use it, and paid a usage fee. It was used by the Lutheran churches that were members of the organization without fee and with priority for use, but if it wasn’t being used at that time, a Catholic group or a Baptist group or a non-religious youth group could use it too. It was rented out for weddings, awards ceremonies, social events, and a whole bunch of other things. This made it a “public accommodation” under the New Jersey law, and therefore subject to the anti-discrimination laws.

After Ms. Bernstein and her partner applied and started causing a stink, the organization changed its policy for use of the facility. Instead of making the facility available to anyone, its use was restricted to only the churches that were the members of the organization. They stopped holding weddings there altogether. So in the Moore case, the facts showed that the facility was private, not public. Since it had become a truly private facility, it was not a “public accommodation” and therefore beyond the scope of the anti-discrimination laws.

And to this day that seems like exactly the right analysis to me. I thought it was the right result in Elane Photography LLC v. Willock, the case about a wedding photographer in New Mexico who didn’t want to accept a gig at a same-sex commitment ceremony. If you don’t want to be subject to laws of general applicability regulating businesses open to the public, don’t be a business open to the public. And I’d be quick to tell the Knapps today that their business is, indeed, open to the public and therefore regulable like any other business open to the public, so I don’t have a lot of sympathy for their desire to immunize themselves from laws of general applicability by virtue of their (admittedly sincere) religious belief.

My problem is that now, I don’t think this is a legally valid analysis anymore. In light of the case now known as Burwell v. Hobby Lobby Stores, Inc., the Religious Freedom Restoration Act (RFRA) appears to trump the distinction between a public accommodation and a truly private club. Granted that RFRA only protects “persons,” not business entities, but Section III of the majority’s opinion in Burwell v. Hobby Lobby reasons that not only does a separate act of Congress include corporations (and thus by extension limited liability companies) in the legal definition of a “person,” but also because a person is necessary to make a corporation do something, the corporation becomes an extension of the human acting on its behalf, that person’s religious rights should be protected by RFRA. (All of this applies by incorporation, via the Fourteenth Amendment, to the State of Idaho and its political subdivision, the City of Coeur D’Alene.)

Which means that now we’re in the world of the RFRA religious rights protection test. The Knapps and their entity must prove two things:

(1) That they have a sincere religious belief that marriage is between only one man and only one woman, and

(2) That the City’s ordinance substantially burdens this belief.

If they can, and there seems very little reason to doubt that they can, then the burden shifts to the City to prove:

(3) The ordinance is in furtherance of a compelling interest, and

(4) The ordinance is the least restrictive means available of fulfilling that compelling interest.

And that’s going to be the battleground of this lawsuit. We don’t need to have any actual same-sex couples asking for the Knapps’ services; the mere existence of the ordinance is enough to trigger standing here. (That is as it should be, in my opinion.) But now the calculus is not whether a business is open to the public or not, it’s now whether a particular person involved in a particular business has a religious objection to this particular law, whether the law is important enough that we pretty much have to disregard it, and if we’ve done enough to accommodate the religion along the way.

Our first real question, then, is whether preventing discrimination against non-heterosexual people in public accommodations is a compelling governmental interest.

Our second real question is, assuming that the answer to the first question is “yes,” is requiring the Knapps to provide their services to same-sex couples the least restrictive means available to the City of Coeur D’Alene to achieve that goal?

As to question 1, it’s as unclear now as it has ever been what the phrase “compelling governmental interest” means. Clearly it’s more than a preference or an economic benefit; in Burwell v. Hobby Lobby, no “compelling governmental interest” was found in the government’s claim to seek broadened access to contraception by people in general. We know that things like national security and health and safety generate such interests. And we know that a compelling interest is more than an “important state interest,” like the prevention of gender discrimination (Craig v. Boren (1976) 492 U.S. 190, 197). So right away, I see a problem: the case law rather strongly suggests that this is not a compelling interest. Maybe it’s not an insurmountable one; maybe since 1976, we’ve decided as a culture that enforcing non-discrimination is indeed a “compelling,” and not merely an “important,” thing for our government to do, such that it becomes difficult to have a civilized society without it.

That’s before we get to the question of whether to achieve this interest, we must compel (one of) the Knapps to perform a religious ceremony which they consider to be a perversion of their religious faith, or if there is some other way that non-heterosexuals can be put on an equal footing with heterosexuals. Would or wouldn’t we want to compel them to offer their services for a mixed-race couple? Or do you think that is a bad analogy?

The good news, for me, is that this is the sort of thing that I think RFRA is properly for. We really shouldn’t compel the Knapps to perform a ceremony that is contrary to their religion, even if it is in the context of a public accommodation. The level of intimacy involved in actually presiding over that ceremony is very high (as I know from having presided over weddings myself). I’m comfortable with a result that tells a same-sex couple, sorry, you can’t make this particular someone do this very thing, preside over a wedding ceremony, especially not if there are reasonable alternatives readily at hand, as I presume there are in a resort location like Coeur D’Alene.

My problem is that I don’t know where the line gets drawn. If we say the Knapps don’t have to preside over the ceremony, then we petty much necessarily also let them not make their banquet hall or other physical facilities available. That seems more like a restaurant to me, and I think we ought to compel a restaurant to serve a same-sex couple the same way it serves a mixed-sex couple. I think that there is less intimacy involved in baking and decorating a wedding cake or serving as a disc jockey at a reception than in performing a wedding ceremony. But, what ought to be the rule in an area where it is less likely that redundant providers of the product or service in question is available?

The idea of, “If you’re open to the public, you’re open to the public so you have to serve the public” is a rule that I can get behind morally and intellectually, because a coherent rule can be made out of it. The idea of “If you have a personal religious objection to doing something you don’t have to do it” has moral appeal but I cannot conceive of how a non-arbitrary rule about what things are or aren’t included in a rule resulting from that concept. Maybe the rule just has to be arbitrary — but if that’s the case, then why not compel the Knapps to perform the wedding? Or, why not allow anyone to get away from any rule of any kind on the basis of claiming a religious objection?

Lawyers like it when there are coherent, understandable rules. Which is the principal reason why I don’t like the Knapps’ lawsuit — it makes the rules much blurrier, much less easy to understand.

 

Feature image by Bobak Ha’Eri retrieved from wikimedia commons.

 

Burt LikkoBurt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

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188 thoughts on “A Lovely Wedding Conundrum

  1. Or, why not allow anyone to get away from any rule of any kind on the basis of claiming a religious objection?

    Why not stuff like “issues of conscience”? That way, the followers of Atheist God can have religious objections too.

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    • Because it expands religious objections to the much broader category of “I don’t want to”. Religions generally have some degree of established doctrines. Absolutely anything can be a personal conviction.

      Pay taxes? It’s against my convictions. Don’t use cocaine? It’s against my convictions. Refrain from using child labour? It’s against my convictions. Abide by environmental regulations? It’s against my convictions.

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      • OK but if someone founded the Church of Cocaine tomorrow, with cocaine use as a sacrament ordained by God, would that be OK? If not you’re going to need the government judging religious beliefs by some criteria, which I’m not convinced maximises religious freedom. If they do get protected then it is open season to simply declare any opinion religious and get the protection. Sure some of us are atheist and unwilling to lie about the fact but I’m sure you can find plenty of people who want to break the law and are willing to pretend God supports them. What then – mind reading?

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      • Matty,
        the church of cocaine got taken to court, and did not win a religious exemption from drug laws. (IRL it was I think mushrooms, which some white guy was trying to say were part of his hodgepodge religious beliefs).

        The church of music also did not get to evade taxes by claiming to be a church.

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      • Do you have a link for that mushrooms case? I’m curious what kind of reasoning was used. Did the court simply find that drug laws are enough of a compelling state interest that no religious objection can override them or did they actually evaluate the sincerity of the beliefs in some way?

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      • Because it expands religious objections to the much broader category of “I don’t want to”.

        Please understand: as an atheist, the two kinds of religious objections I see are either “I don’t want to” or “someone else told me to not want to”.

        “I don’t want to” strikes me as having a hell of a lot more oomph.

        As for “pay taxes”, I’m pretty sure that the SCotUS already ruled on that one. Cocaine? Well… I’m kinda a fan of ending the war on drugs, even for passe` drugs. Using child labor? Well, that involves violating someone else’s rights there. “I have the right to violate someone else’s rights!” is a fun debate but I’m pretty firmly on the “no, you don’t” side there. “Abide by environmental regulations” is another one that I’m pretty sure has been ruled on before.

        In any case, it seems to me that there remains room for atheist types to have consciences that they can appeal to. Even if they’re not particularly organized about it.

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      • “if someone founded the Church of Cocaine tomorrow, with cocaine use as a sacrament ordained by God, would that be OK?”

        Please tell me that you’re aware of how we got the RFRA in the first place and are just being witty here.

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      • The case is Employment Division v. Smith.

        http://en.wikipedia.org/wiki/Employment_Division_v._Smith

        It’s a little bit more complex than just calling it the Mushroom case, though. We’ve got a case where a couple of guys were denied unemployment benefits because they tested positive for Peyote, something they used as part of a religious ceremony. The Supreme Court found for the drug testers saying that just because the state *CAN* make this accommodation on behalf of religious folks, it doesn’t have to make it. Therefore, the guys who tested positive had their bennies yanked.

        Well, the public went nutso. Like, even the Religious Right went nutso.

        The Religious Freedom Restoration Act passed shortly thereafter.

        http://en.wikipedia.org/wiki/Religious_Freedom_Restoration_Act

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      • Religious exceptions are not based either on “I don’t want to” or “Someone else told me not to want to”, but on “I consider taking a certain action to be fundamentally immoral” or “I consider a certain action to be morally obligatory”. It’s not about whatever you want. It’s about being free to do what you believe is right.

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      • But don’t you want to do what is right, and not do what is wrong?

        Also, why do we think a non-religious person couldn’t consider their actions along a moral dimension, and also wish to be free to do what they believe is right?

        I am totally not following the distinction you are trying to draw.

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      • Katherine, please understand that, as an atheist, I can’t tell the difference between “I consider taking a certain action to be fundamentally immoral” and my own version of “hey, yo. I’ve got an issue of conscience here” which you say is indistinguishable from “I don’t want to”.

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  2. I am largely in agreement here with you on the issues. You are right that RFRA is really meant for people like the plaintiff’s in question but it is hard to tell where the line gets drawn and I also supported the decisions by various state attorney generals to go after bakers who refused to make cakes for same sex couples.

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  3. Burwell v. Hobby Lobby, no “compelling governmental interest” was found in the government’s claim to seek broadened access to contraception by people in general.

    This seems incorrect to me. From the Hobby Lobby majority’s opinion: “Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement.”

    It’s debatable whether that can be construed as a determination of a compelling interest, but it’s hardly language that would support the notion that this was not a compelling interest.

    I’d also point out that the court explicitly indicated that, at the very least, anti-employment discrimination laws serve a “compelling governmental interest.” I don’t think it would be a stretch to say that this would be extended to include public accommodations laws more generally.

    I think the “compelling interest” standard in the context of RFRA in general seems to have a different meaning than a “compelling interest” standard in other contexts.

    I also suspect that in this case, the “substantial burden” test will not be a slam dunk for the business owners. I think they’ll win on it, to be sure, but I think the fact that historically their business has been anything but religious in practice will weigh against them, whereas Hobby Lobby had made a pretty good case that its business practices had a basis in religious expression.

    The least restrictive means question, assuming it gets reached, is a tough one for me. I think what I get back to is that they have not historically treated their business as having any kind of religious character. They’ve acted as a public accommodation throughout and, lest we forget, they are not being asked to perform the religious sacrament of marriage, only to handle the legally required aspects of civil marriage. I don’t see a way that we can say that the goals of public accommodations laws can be achieved if exceptions are provided for public accommodations that are operated by people with religious beliefs.

    But this last is a really close issue for me, so I’m not certain where I come down in the end.

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    • Point taken re: compelling interest language in Hobby Lobby. You’re correct to note that the majority conceded the existence of a compelling interest arguendo, and moved on to say that less restrictive means to fulfill it were available.

      Nevertheless, with Craig v. Boren still good law saying that “gender” (1976 definition) discrimination merited intermediate but not strict scrutiny, then “gender” (2014 definition) discrimination would seem to merit similar review, in turn suggesting that equalizing that social and economic playing field is an important but not compelling interest.

      And I wonder if it really is. I take a back seat to no one in saying that the government ought to level the social and economic playing field as to this and many other kinds of discrimination, but I’m as yet unconvinced that doing so is a deep core function of government the way that prevention of murder or defense against invasion is.

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      • I think you’re making a category error in treating “compelling interest” as synonymous with “thing which triggers strict scrutiny.” In other words, you’re essentially suggesting that the only thing that could be found a “compelling interest” for strict scrutiny purposes would be something that itself would trigger strict scrutiny if the tables were turned – ie, the only suspect classifications that could survive strict scrutiny would more or less be classifications that seek to remedy other suspect classifications.

        But that’s not the case. Regardless, what you’re suggesting as a standard for a “compelling interest” would mean that a “compelling interest” could almost never be found, and we’d almost never even reach the “narrowly tailored” or “least restrictive means” portions of the tests. And, while it’s certainly hard to survive strict scrutiny, we know that a lot of the time it’s the narrowly tailored/least restrictive means elements that prove fatal rather than the compelling interest element. What’s more, though, we also know that, despite the “strict in theory, fatal in fact” mantra about strict scrutiny, regulations actually survive strict scrutiny quite often – 30% on average. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=897360

        Last but not least, Wikipedia says that the above-linked paper also found that in the overwhelming majority of cases where a religious exemption was sought by the plaintiff, the government survived strict scrutiny. http://en.wikipedia.org/wiki/Strict_scrutiny

        Assuming that to be true, my suggestion that RFRA-style strict scrutiny has a lower standard for what constitutes a “compelling interest” as compared to other forms of strict scrutiny would seem to have legs.

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    • Heyho! Why not simply allow a Quaker marriage — then all you need is a few witnesses (provided by the wedding party, one assumes), and the couple to sign a document.

      How the heck is that very “personal” to the owners of the establishment?

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  4. While it seems that you have defended the right of the Knapps not to be forced to violate their conscience, it seems that the way you have spelled things out, you seem to have implied that a reasonable person could come to the opposite conclusion. But, weren’t we so sure just a few months ago that no reasonable person who was pro SSM would ever think of forcing people to solemnise a SSM ceremony? I think this is how overton windows get shifted. I also think that if SSM supporters had really been up front about the possibility that someone could be forced to conduct SSM, that would have been a PR disaster.

    That said, I think this is a perfect example of why public accommodation laws are just bad laws*. Of course this puts me on the wrong side of history, but while in legal reasoning you are pretty much obligated to continue applying a principle even when you find an exception to it, moral reasoning does not work like that. Once we examine why we would think that their religious objections override why we care about public accommodation, we find ourselves logically compelled to see that those reasons would override in almost all cases. It is, perhaps, only in the extreme where failure to accommodate endangers conscience to the same extent that forcing someone to accommodate does would it be possible to even consider some exception to the presumption against forcing public accommodation.

    *At least those without conscience exceptions are. But conscience exceptions would gut the law. Almost no one who discriminates does so for the evulz. Everyone who does so thinks that they have certain religious or moral obligations to avoid accommodating some person. So if having an exception is the same as having no law, then it is t case that any public accommodation law with real bite is going to have unjust consequences.

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    • The slippery slope is indeed a thing that occurs in the real world, especially in the real world of public policy – that which is unthinkable today is made thinkable tomorrow by way of adopting a policy that moves in that general direction.

      My thought about public accommodation laws is that they are the least bad way for the government to move society towards real social and economic equality for all. While that may not be a compelling governmental interest, it is an important one.

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    • This is pretty sturdily across the line for me. This is the first time I have been unambiguously on the same side as the anti-SSM people. Which is an odd sensation, though one I will expect to become more common.

      A part of it is that I simply think that pastors should have a really wide latitude in their activities. Far more than bakers or photographers. This is critical.

      The other part of it, though, is that I have spent years saying that this wouldn’t happen. Yes, I tended to say “churches” rather than “pastors” but in this case, it’s close enough. Far, far too close.

      I don’t mind saying “If you are going to hold civil weddings without the trappings of religion, you have to serve gays as well” but operating a for-profit or LLC doesn’t qualify.

      In this case, they apparently used to do both civil and religious ceremonies. I’d object at least slightly less if that were the distinction being made in this particular case. I have no particularly affinity for protecting marryin’ Elvises from having to perform gay weddings. My only fear, actually, is that it would lead to cases closer to like this being pursued, and cases that never had a “civil wedding” option by virtue of the fact that they have a storefront.

      A couple more observations, before I bow out of this conversation (this is one of those cases where I look at the other side of the conversation – at least those making the maximal argument – with genuine dismay):

      1) A part of me sees a bit of justice in this. Not in the sense of “haha bigots have to perform marriage ceremonies!” but in the sense that, you know, if they’d seen the writing on the wall they could have passed a law stipulating the terms of gay marriage and that it would not involve any pastor being legally required to perform services. We’re here in part because they didn’t do that. So there is a bit of just desserts here, but only in the sense of two wrongs making a right.

      2) I had only two requests for our wedding. One of which was that Corinthians (“Love is gentle, love is kind…”) would not be in it (the other being a quote from Eccliastes). I got neither of them. I can’t remember why Ecclesiastes didn’t work out, but the judge literally did not have a service plan that did not include Corinthians – or, by extension, God.

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      • The so called civil ceremony is sufficiently close in form (and geneology) to the Christian ceremony (especially from where I’m standing) that I get the feeling that people who perform both Christian and civil ceremonies can be seen as performing Christian and truncated Christian ceremonies. The Hindu ceremony is completely different in form, especially the traditional South Indian Brahmin Wedding.

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      • 1) I’m only pointing this out because I used to make the same mistake until recently, but the expression is “just deserts”, not “desserts”.

        2) Did you request that Eccliastes be in your wedding, or not be in your wedding?

        3) The expression “if you give someone an inch, he will take a mile” didn’t come from nowhere.

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      • Its not the mention of God, but the civil ceremony has the following structure

        1. A homily/sermon by the JoP
        2. Wedding Vows
        3. Do you take….
        4. You may kiss the bride

        This is the structure of a civil ceremony (at least in Singapore). I attended my friends’ church wedding. The only difference was that the sermon was longer, there were lots of Hymns and the bride came in white and there were bridesmaids and groomsmen and a wedding march etc. Probably the only reason my brother’s civil ceremony didn’t have all of that was because it is not part of our culture to have it and they were going to have the religious ceremony done in India a month later.

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      • Will,
        they’re not being asked to preform a religious ceremony, merely the civil trappings.
        I’m all for allowing anyone who wants to, to get a Quaker Wedding (outlined above) which seems significantly less intimate than icing a wedding cake.

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      • Well I’m not that familiar with the form but it seems the only legal requirements are.

        -both people have to declare in front of the registrar and at least two witnesses they are legally free to marry
        -an exchange of vows in front of the same people.

        The rest is agreed between the couple and the registrar and may often resemble a Christian order of service but there doesn’t seem to be any requirement for a sermon, exchange of rings or anything like that.

        Incidentally the Dutch civil service is even simpler and translates as.

        -Do you A take B to be your husband/wife and do you accept the duties the law places on married persons?
        -Yes

        Repeated again for B followed by signing the paperwork. My brother married in the Netherlands and I think the actual wedding took about ten minutes including a short talk, which I wouldn’t call a sermon, in which the officiant explained to us foreign visitors what was going to happen.

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      • I can think of no reason why it would. Anti-discrimination law that applies to people and private entities are statutory. Judges can make the government do things but generally can’t make private entities do so unless there is a law directing it.

        Even this has a good chance of being stuck down, depending on what is being required.

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      • ScarletNumbers, Thanks. Thinking back, I think the reason it wasn’t included was for lack of reader. The judge wouldn’t deviate from one of two plans (both of which included Corinthians), my sister-in-law refused to read anything from the Bible, and the other reader had already selected something that Clancy really liked.

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    • “But, weren’t we so sure just a few months ago that no reasonable person who was pro SSM would ever think of forcing people to solemnise a SSM ceremony?”

      I had thought that the issue is using a place which is rented out to others.

      The ADF is making a claim, of course, but they’re not backing it up.

      I notice that Burt’s take was the same as mine.

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    • I just took a glance at the unbelievably long complaint in this case. (A link is embedded in the OP.) after about 300 paragraphs describing what a wonderful Christian couple these people are, the first actual cause of action alleged is precisely this a compelled speech violation.

      I think a lot of the excess verbiage concerning how Christian these people are, combined with what I revealed in my cursory research into the into T entity’s status, indicates that there is an effort to make up for the fact that this brand new entity was created specifically for the purpose of saying that it will only marry one man and one woman. The previous entity, I would be willing to wager, had no such language in any of its governing documents. So, like Brother Mark suggested above, there may be a substantial effort underway to try and shoehorn this case into the mold set by Hobby Lobby, one that has an evidentiary evidence of a tradition going back many years, of opposition to same-sex marriage and adherence to a particular set of religious values.

      EDIT: Siri’s speech recognition is good. But not perfect.

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    • So while this could be won rather handily on 1stA grounds (a marriage ceremony requires that words be said & government can not compel a person to utter certain words they do not wish to utter), the complaint is arguing ala Hobby Lobby?

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      • There are five causes of action:

        1. First Amendment — Free Speech/Forced Speech claim (city allegedly compelling speech).
        2. First Amendment — Free Exercise claim (city allegedly requiring “ministry” to be conducted in a certain way).
        3. FERPA — state law equivalent of the Federal RFRA.
        4. Equal Protection — religion as basis (city allegedly favors religions that recognize SSM).
        5. Due Process — seems to be substantive rather than procedural due process, (claims that DP includes “…the right to own and operate a business and earn a livelihood free from unreasonable governmental interference”).

        The strongest of the plaintiffs’ claims, as I see it, is the third cause of action. Second cause of action looks like a dead-bang loser to me as it alleges direct violation of the Constitution, and thus is directly afoul of Employment Division v. Smith. Fifth looks very weird to me; the concept of a DP claim that governmental inference is so overburdensome that the property in question has become useless is both a high standard, and more to the point, a claim for “inverse condemnation,” which is not alleged. And the fourth, well, that’s kind of an oddball too; Prof. Volokh seems to think the first cause of action is a strong one; I’m not sure I agree entirely with that because it’s not clear that the city is compelling the Knapps in particular to engage in any particular kind of speech; it could be that the city simply wants the Knapps to make their facilities available to a (as-yet theoretical) same-sex couple who could bring their own minister.

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      • I’m not sure I agree entirely with that because it’s not clear that the city is compelling the Knapps in particular to engage in any particular kind of speech; it could be that the city simply wants the Knapps to make their facilities available to a (as-yet theoretical) same-sex couple who could bring their own minister.

        To me this seems like a non-burdensome option.

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      • FWIW, I am sort of under the impression that most of the business they do is walk-in business (by virtue of their location). Which creates something of a dilemma. The walk-ins are not going to have their own officiant, so even if they don’t vaguely want to require the Knapps to perform the service, it would need to be decided whether they do actually want to (a) require the Knapps to do it, or (b) allow the discrimination to take place.

        (In my view, (b) is the only option, but this is something that would need to be clarified.)

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  5. Since Jews and Muslims are allowed to discriminate (Kosher and Halal food preparation requires discrimination) for religious reasons in for-profit businesses Christians should be able to as well. If Christians are required to abide anti-discrimination laws Halal slaughterhouses and Kosher Wineries should as well

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      • That’s fair, . I guess my issue is at what point does a pastor stop being a pastor. Or, more precisely, how are we defining “pastor”? I would have no issue with carving out any and all exemptions for religious leaders acting in just such a capacity. It strikes me that the folks in this case are business owners engaging in a commercial business who just so happen to be pastors.

        Suppose their business was not a wedding hall but instead a burger joint. Could they similarly deny burgers to gay folks? What if the burgers come with a side of communion wafers instead of fries?

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      • Perhaps to put this more clearly, the way that Burt describes how the case would be viewed pre-Hobby Lobby made perfect sense to me: open a public accommodation, abide by the same rules as all public accommodations. Hobby Lobby has said that public accommodations owned by religious folks get to play by different rules. I disagree with that.

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      • I think you have to look at how credible their claims are that it is indeed a matter of religious exercise.

        I think the case to be made that performing a wedding is a religious exercise is strong, and so they should have more latitude in how and when to carry it out.

        The case for burgers is much weaker. Though I would argue that a law requiring butchers to handle all meats (including pork) should not apply to a Jewish butchers (this is a subplot in a book I’m reading), even if that means that they get to play by different rules.

        I broadly support anti-discrimination law pertaining to gay people, but there are cases it conflicts with other rights. Not just of churches but of people. Even if I really wish the Knapps would welcome gays to the world of legally recognized weddings.

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      • Of course, it’s a continuum.

        On the one end, we can have an overtly religious institution. The Southern Baptist Conference, for instance.

        Near that, we have a for-profit business owned as a subsidiary of the overtly religious entity. That would be the Boardwalk Pavilion operated by the Ocean Grove Camp Meeting Association, from the New Jersey cases I wrote about back in ’08.

        Then, we have a business like the Knapp’s, which does something that is sometimes explicitly religious (the wedding ceremony) and which the Knapps consider to be their “ministry,” but which is also pretty clearly a stand-alone, for-profit business.

        Then, we have a business that is involved with sometimes religious activities but is pretty much mostly engaged in secular activities and the people who run it happen to be religious and so they wrote a bunch of religious stuff into their governing documents. Here, I’m thinking about Hobby Lobby Stores: you don’t particularly have to be Christian at all to sell yarn but there is both documentary language and a pretty elaborate history of adhering to religious beliefs in the for-profit context.

        Then, we have a business that hasn’t gone to all that much trouble by way of integrating its principals’ religious beliefs into its governing documents, but its owners are still personally very devout. IIRC, that’s Elane Photography, which alleged the owners’ personal beliefs as the reason why they “could not” take photographs of a same-sex commitment ceremony.

        Then way at the other end of the continuum, we get to a business run by a secular person, who therefore lacks religious beliefs. Let’s call that… Burt Likko’s Lemonade Stand. Burt Likko may have strong personal moral beliefs but they aren’t grounded in any formal religion.

        As I read it, on this continuum, only Burt Likko’s Lemonade Stand cannot invoke the protections of RFRA. Brother Mark, above, argues that maybe Elane Photography cannot, either, because it can’t demonstrate an effort and a track record of inhering the owners’ religious beliefs into the business’ conduct. I’m not sure I agree with that based on section III of the majority’s opinion in Hobby Lobby.

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      • If the only group that cannot invoke moral objection are those whose morals are not grounded in religion, then we are favoring religion over non-religion. I find that highly problematic.

        Does it matter if they allow others to purchase their services who might be in non-accordance with their faith?

        For the record, my mom wanted us to have a Catholic priest offer a blessing over our otherwise non-religious wedding that brought together three faiths. I reached out to a local priest who (quite rudely and insultingly) told me he could not and would not participate in our day in any way, shape, or form. I have zero objection to him being allowed to do this. We wanted him to act in his role as a Catholic priest, offering a Catholic prayer at a non-Catholic wedding. So I’m not trying to spoil religion. I just think once the religious wander into non-religious territory, they can’t claim the same protections that they have in the exclusively religious zones.

        All that said, I can understand why strategically this is a horrible move for SSM advocates.

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      • , I think it’s fair to ask for an outline of where they draw the line and why. But if they say “We do offer services to non-believers as a form of evangelism, but we cannot be evangelizing while assisting in something we precisely see as contrary to the ways of God”… then while I don’t agree with it, it seems valid.

        Or it isn’t, such as if they do services sans-mention-of-god, in which case I think it’s fair to say “You need to either restrict your services to those religious in nature, or you need to be willing to marry gays.”

        A lot of this comes down to “What do the ministers need to do to be in accordance with the law?”

        If the answer is “Either go against your religious beliefs or go out of business”… that’s excessive.

        If the answer is “Don’t hold any non-religious ceremonies…” that strikes me as more reasonable.

        If the answer is “Be willing to rent out your chapel to other ministers willing to perform the ceremony” that’s more reasonable still.

        Which is all complicated. But balancing rights often is, and I think it has to be. What I see in a lot of these discussions are attempts to make it simple. Most particularly with “If you’re a business (or you’re licensed by the state or you have a storefront), we get to tell you what to do. Period.” The problem is that those arguments don’t always end precisely where we want them to (see the case of the Jewish butcher, for example), if there is no counterbalance or inherently limiting principle.

        Burt, it would seem reasonable to me for an atheist officiant to refuse to marry religious couples, or forbid mentions of god during ceremonies, even in locales with laws against religious discrimination. I think it’s reasonable to allow officiants an assumed discretion over who to preside over, rather than assuming public accommodation.

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      • Good points. I would also draw a line somewhere between officiating and renting out the facility. If the facility itself is a public accommodation, than it should be available to the entirety of the public. Facilities don’t have rights. Individuals do. And if the individuals don’t want to participate in the ceremony itself, I’m okay with allowing them to abstain.

        Now, if they have structured their business such that they and they alone can officiate a wedding in the facility, than by definition they have ceased to be a public accommodation. Which means they should retain the rights that non-public accommodations have but also must sacrifice whatever rights/privileges exclusive to public accommodations (though I’m not sure what those might be).

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      • If the only group that cannot invoke moral objection are those whose morals are not grounded in religion, then we are favoring religion over non-religion. I find that highly problematic.

        As do I, . Which is part of why this post-Hobby Lobby expansive reading of RFRA makes me a little bit steamed.

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      • , this is technical and nit-pickey, but IIRC, the Ocean Grove case didn’t resolve around the religious nature of that organization at all.

        They were qualifying for a tax break from the state of New Jersey for making beachfront property available to the public–And even if they were organized as a non-profit church, they still wouldn’t have qualified for that tax break if they didn’t keep their gazebo available to all members of the public.

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      • “If we’re telling ministers “Marry gays or go out of business” then we (SSM advocates) have gone too far. ”

        No. *Somebody* has gone too far. In case you haven’t noticed, government violations of the First Amendment are common, and generally from the right.

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  6. I like your, “can’t make this particular someone […]preside over a wedding ceremony, especially not if there are reasonable alternatives readily at hand” formulation.

    To me, the line lies somewhere in the difference between the nature of the relationship between a prospective consumer and prospective vendors, and between employee and employer. I agree that we might well have come to a point where even preventing discrimination in the former is seen as a compelling state interest, but for me, at least for the moment, I would be satisfied if we merely concluded that preventing discrimination in the latter is. Though there are exceptions, generally the position of the employee is relatively a much more dependent position than is the position of potential purchaser. To me, at least, the state has a presumptively more compelling interest in governing various aspects of the former relationship than in governing aspects of the latter (though that might vary with the aspect being governed).

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      • So the last sentence should read: “To me, at least, the state has a presumptively more compelling interest in governing various aspects of the former latter relationship [employment] than in governing aspects of the latter former [sales] (though that might vary with the aspect being governed).” ?

        Put that was, it makes some sense — employment is the principal means by which most people derive sustenance, where the ability to buy things is something that ultimately the marketplace will find some sort of solution to, as long as you have money at all. Although sales is important too: if you can’t go buy food at a regular grocery store because of private discrimination, you’re still pretty much a second-class citizen even if the “store for Black folk” will sell to you, and I, for one, find that unacceptable.

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      • You have correct my intent. In between the two sentences with the former & latter construction, I inserted a sentence in which I rename the concepts again, but this time in reverse order, so that what was former in the antepenultimate sentence becomes latter in the final sentence, and what was latter becomes former. So I think each reference is correct where I had them, but within the paragraph, former & latter each refer to one of the concepts and then the opposing one at different times.

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      • …And yes, this view probably too much discounts the need to be able to avail yourself of public accommodations regardless of identity or appearance, whether they are privately held & for profit, or publicly run accommodations. Nevertheless, the employment relationship stands out as surpassingly significant from a regulatory perspective to me. I’m not at all sure that is broadly the sense that legislatures tend to have on the question, however…

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      • …Which to me seems significant. If it can’t be shown that legislatures demonstrate significantly more interest in regulating a given kind of activity, it seems like it would be hard to argue, no matter how strongly I feel about it, that courts should recognize that the state has a particularly compelling interest in regulating in that area in particular that might trump certain rights more than regulations iin other areas would.

        I have no idea if that would actually be relevant to any judge’s consideration of the argument, though.

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  7. I see no problem with the city telling Mr. and Mrs. Knapp, in their capacity as business owners, “If a same sex couple wants to have a wedding in your for-profit chapel, you have to allow it”.

    I do, however, have a problem with the city telling Mr. and Mrs. Knapp, in their capacity as pastors, “If a same sex couple wants you to officiate that wedding, you must do so”.

    This is pretty clearly a case of the former rather than the latter. According to the complaint, the hitching post wedding chapel has hired other pastors in the past to conduct weddings, and there are other pastors in town who have expressed willingness to conduct same-sex ceremonies. These two facts, when combined, suggest an obvious means by which the company might provide services to all customers in a manner that won’t cause the Knapps to perform religious ceremonies that violate their sincerely held beliefs.

    The obstinate refusal of the business owners to avail themselves of this path is, to me, evidence of the sort of poisonous bigotry that the anti-discrimination ordinance was created to combat.

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    • It’s still their chapel. If they allow it to be used for a same-sex wedding, they’re participating in and facilitating a same-sex wedding. Why they care, I don’t know, but they do, and it’s their chapel.

      It seems to me that your position is premised on the idea that running a business is not a right, but a privilege permitted at the pleasure of the state and on its terms. Is that an unfair characterization?

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      • The complaint is mainly about officiating. Among other things, the Knapps claim that their religious beliefs prohibit them from allowing anyone but themselves or a very closely-trusted and vetted associate to perform weddings (even secular ceremonies) as part of their (for-profit) ministry.

        Read all about it in the complaint itself, which is about three-quarters a biography of the Knapps and their wedding business. Principally for that reason, I don’t like the complaint all that much. I’d have used a very different (and much more factually sparse) style of legal drafting had I been the Knapp’s attorney, but this doesn’t break the rules, and it’s how they chose to do it.

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      • Perhaps my remark above overstated it just a bit. I should say, the facts alleged appear to point in the direction of the Knapps claiming to retain discretion over who uses their building to perform a ceremony, by calling that sort of decision within the ambit of their “ministry.” Note the elastic ambiguity of the word “ministry” when it comes to legally questionable things that the Knapps wish to do, and the verbose justifications therefor. I’m not accusing them (or their lawyers) of prevaricating, but it does seem odd that they are so… indirect about explaining themselves.

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      • I scanned the document. It does seem that they – as a matter of course – do not allow BYOO and want to be able to continue to do so. If that’s the sticking point, I am more ambivalent. What needs to be clarified, to me, is what precisely the city is requiring that they do.

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      • Yeah. That’s important–especially since the major evidence of the city’s demand in the complaint is just interviews with city officials speculating on the legality of discriminating for-profit chapels in general, rather than any actual communication between the city and the Hitching Post Chapel or the Knapps.

        For that reason, I disagree with Burt when he says that just the threat of the law should be enough for the Knapps to have standing to sue in court. I just don’t think there’s enough to meet the burden of the controversy clause yet.

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      • If we could get the government to redefine “Kosher/Halal” to include allowances for gentiles/infidels to help produce it, assuming they wash their hands first or whatever the dumb taboos require, wouldn’t that solve the problem?

        Assuming the Jews/Muslims don’t get all “that’s not how it works”, of course.

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      • Jay,
        they’d get all “that’s not how it works”.
        I don’t think the government should be in the business of banning preexisting religious practices without a DAMN GOOD REASON.

        dand,
        I think I do, but I’d be pretty damn leery about allowing “New” businesses that have to be specifically “not-goy”… (Those two are getting an exception, and it’s partially historical. If your rebbe wakes up next week, and says “you can only buy from jewish car dealers who only employ jews” I’m going to say that those should be stopped.)

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  8. Quick question: my reading of this is that it’s a pre-emptive lawsuit.

    We don’t have a case of two people trying to get married and being turned down, but the officiants themselves hammering out beforehand that they don’t want to wait until that day comes. They want this hammered out RIGHT NOW.

    Am I reading that right?

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      • Technically, these are officious officials who are alleged to be threatening such a compulsion, not overreaching SSM advocates. But that still leaves egg on SSM advocates’ faces: we were almost unanimous in saying that “Ministers won’t have to act contrary to their religion” but this at least looks like exactly that happening.

        Both as a matter of principle and as a matter of politics, I think it’s incumbent to be loud and clear that the Knapps don’t have to officiate over an SSM ceremony. Whether they have to make their banquet hall available strikes me as a substantively different question because renting out the facility is much less intrusive upon them than requiring them, personally, to actually do something they don’t believe in. Politically, too, that’s on the table because we SSM folks were generally in favor of having public accommodations subject to anti-discrimination laws so everyone knew all along that was within the scope of what us SSM advocates were asking for. But compelling the ministers was something that almost all of us were always willing to keep a hands-off attitude about.

        Now, let’s read between the lines here: why are city officials purportedly going out of their way to tell the Knapps that they have to comply with the new law? Way I see it, it’s a good bet that there is some prior antagonism going on there on a completely unrelated issue. That, of course, isn’t fair in the cosmic sense, but it is very often the way things really go down.

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      • Well I agree entirely that no religious person should be compelled to provide religious services to gay couples (and I pity with burning intensity any gays insane enough to desire such compulsion). I know it doesn’t matter legally but it strikes me as emotionally pertinent that there are no actual gay/lesbian couples trying to get into these people’s wedding hall.

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  9. Some thoughts…

    It’s interesting that SSM opponents have two slippery-slope arguments at their disposal: the stupid one about everyone eventually marrying box turtles, and the apparently more plausible one about legal restrictions against following one’s religious conscience.

    By extension, there are occasional mumblings about a cultural slippery slope: Where SSM is legalized, homosexuality can become even more publicly acceptable, leading to the cultural marginalization of those who still oppose it. There’s an unspoken sense that people have a “right” to not be seen as bigots by their country or by their own descendents, or even a right to pass on their views to those descendents. It’s almost as though there’s something “unfair” about the apparent harmlessness of homosexuality, the fact that Massachusetts hasn’t collapsed into anarchy, etc. (Although they might express that injustice as a matter of liberal brainwashing). In politics, I’ve seen this expressed as a “one-party country” argument, that no matter how out-of-touch (or downright awful) Republicans seem to your liberal sensibilities, they need some support simply because no one wants a one-party country.

    There’s a definite ridiculousness in the slippery-slope argument that SSM necessarily leads to the legal forcing of photographers, bakers, and finally ministers to lends their services to gay people. It falls apart on so many levels. For one thing, it amounts to an argument that everything any religion opposes should be illegal, to stave the risk of someone violating their religious conscience by rubbing shoulders with sinners. In the specific arena of marriage, it would certainly imply that divorce and remarriage should be illegal, because a re-marrying couple could theoretically sue a Catholic priest for refusing to marry them. Another problem is the lack of solid legal connection, apart from a general sense that if you recognize gay marriage, you’re recognizing gay people, and once the law starts seeing them as a protected class, then public-accommodation laws come into play. (Hence, not so much an argument against SSM as one against the gay rights movement at large.)

    So the idea seems absurd, and yet here we are. Fortunately, conservatives have sufficiently given up that they’re not trying to use this as an argument for stuffing the genie back into the bottle, they’re just trying to cut their losses. And despite the scorn I’ve heaped on them, I empathize. I’m divided in the same way as Burt Likko on this.

    There’s a tempting end-justifies-means thing here. I don’t know if Loving v Virginia was followed by a series of laws or lawsuits compelling ministers to marry mixed-race couples, but if there had been, how many of us today would shed tears for the racists? Likewise, how tempting is it to just use the power of the state to speed the cultural attitudes up a bit, allowing for the occasional futile backlash against such compulsion?

    Of course, maybe I’m assuming too much in making the usual parallels between homophobia and racism. A writer for the Economist advises legal toleration for people opposed to same-sex marriage. When it comes to the “What about Jim Crow” argument, he makes an interesting case:

    Racism is baked into America’s DNA. The horror of America’s brutal history of slavery and racial apartheid, its centrality to American history and culture, and its comprehensive distortion of American institutions demands redress. Redress requires, and therefore justifies, reasonable restrictions on otherwise sacrosanct liberal rights of free association. Institutionalised homophobia is also terrible, but not that terrible.

    I agree with all the premises but not the conclusion. Public-accommodation laws aren’t merely redress, they are an approach at justice, even if the relevant bigotries were only invented a year ago and are only somewhat dehumanizing. (In any case, that’s not quite an argument social conservatives can make much use of, apart from the milder form that “Racism is really bad but anti-gay opposition isn’t bad at all”. They’re not about to admit that American history and racism are joined at the hip.)

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    • Institutionalized homophobia hasn’t lead to anywhere near the same level of horror that institutionalized racism has–But I’m not sure that means it isn’t just as baked in. We’re seeing a huge change in attitudes, but that’s not different from the huge change in attitudes about race that America experienced in the 60s and 70s. I suspect that the same dynamic will play out–Bigoted attitudes about homosexuality will become less common but won’t really go away.

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  10. Jaybird October 21, 2014 at 11:42 am
    “Technically, I don’t see how you can frame limited liability as anything but something that happens at the pleasure of the state.”

    The Supreme Court of the Rail Roads and Robber Barons begs to disagree :)

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  11. What is going on here appears to be that *performing a wedding*, which is service generally provided by religious institutions and under a religious guise, was brought under the auspices of a business, and by doing that they removed the ‘church exemption’ that exists under the law.

    This was, uh, apparently deliberate on their part, considering they just incorporated.

    While the quoted legal definition says ‘…any public place, licensed or unlicensed, kept for gain, hire or reward, or where charges are made for admission, service, occupancy or use of any property or facilities…’, I am suspecting that ‘wedding’, or even ‘religious service’ was *not* intended to be included as one of those ‘services’, because technically that definition would even include *churches* that charge admission for something.

    I suspect the people writing the law didn’t put it in the exception because they assumed that all public places that were *religious* were churches (Which almost certainly already have religious exceptions, or some church would have sued already.), instead of these idiotic ‘religious for-profit businesses’ that keep showing up.

    I pointed this out back at Hobby Lobby: At some point we’re going to have either start saying ‘There is a place under the law for religious corporations, and that is under the *non-profit* law. You live there, you say your ‘religious’, you get all sorts of religious exceptions. You step out of that, you lose all religious exceptions.’, or we’ll keep having these people trying to dismantle secular governance keep making lawsuit after lawsuit by randomly asserting that any random corporate regulation is ‘against their religion’.

    These people appear sympathetic more sympathetic than Hobby Lobby because a wedding *does* appear to be an actual religious practice. So ask yourself *why did they just incorporate as a business*? They could have continued to existed as ordained ministers providing religious services that then use the building they themselves own for free, which is, it seems, was how they were before. Or they could have turned the building into an actual ‘religious non-profit’ with themselves as paid employees.

    Instead, they set up something that the government then requires them to do non-discriminatory, and then sued over it.

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    • I pointed this out back at Hobby Lobby: At some point we’re going to have either start saying ‘There is a place under the law for religious corporations, and that is under the *non-profit* law. You live there, you say your ‘religious’, you get all sorts of religious exceptions. You step out of that, you lose all religious exceptions.’, or we’ll keep having these people trying to dismantle secular governance keep making lawsuit after lawsuit by randomly asserting that any random corporate regulation is ‘against their religion’.

      This, by the way, was IMO your strongest point during the Hobby Lobby case, although I still don’t necessarily agree that “there is a place under the law for religious corporations” must be “under the non-profit law”.

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      • although I still don’t necessarily agree that “there is a place under the law for religious corporations” must be “under the non-profit law”.

        The way I look at it, religious exemptions for corporations (By which I mean all incorporated entities.) are not any sort of right. There’s a 1st amendment right for *individuals* to have religious exemptions in various contexts (Although I’d much rather those either be on a law-by-law basis, or a somewhat watered down RFRA, which I think is bit too broad even if it did only apply to individuals.), but that *only* applies to natural persons.

        But society understands that an incorporated form makes things much easier to deal with. Religious institutions need to own property, employ people, etc. So just like we created the for-profit corporate form to do that, we’ve created a form to make an incorporated religious entity, and they get all the religious opt-outs under the law that individuals do.

        I understand you idea that maybe there should be something else besides the for-profit/non-profit divide, but the problem is, I’m not seeing what that distinction could be.

        And more the point…non-profits are given tax exemptions because they serve a public good. Religious non-profits, on top of that, get exemptions to laws for religious reasons…because they, at least nominally, serve a public good.

        For-profits ‘religious organizations’ do not appear to serve any purpose beside making money. Not only is this *not* a public good we need to encourage (It sorta encourages itself), but it means we have to decide out if they’re trying to claim an exemption to a law for bonafide religious purposes, or simply to make more profits.

        This is not to say that non-profits are never driven by money issues, but those are ‘What can this organization do with the money it has?’ not ‘How much profit can we make?’ Even if there are employees, non-profits are run by a board, which is elected by members, neither of which can receive for being those things. Non-profits are, in a generic sense, supposed to be ‘more honest’, and tend to operated by ‘true believers’ in their mission, because the monetary incentive is removed, so we can *believe* them.

        So if we came up with some sort of distinction under the law that allowed religious for-profits, I just don’t *trust* them to be motivated by religion. I would, at minimum, demand if they try to claim any sort of religious exemption that would coincidentally save them money, they have to pay that much more in taxes. But the entire thing is pointless.

        I, however, wouldn’t be opposed to moving churches out from the other 501(c)(3)s to somewhere else. It’s sorta weird that the explicitly religious organizations are lumped with other non-profits, many of which are explicitly *non*-religious.

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      • I understand you idea that maybe there should be something else besides the for-profit/non-profit divide, but the problem is, I’m not seeing what that distinction could be.

        Well, as I mentioned during the discussion, my idea is that articles of incorporation should just include what the corporate entity wants to include at the time of incorporation… and if you don’t include explicit reference to some particular *operational* procedure on the grounds of religious beliefs, then you don’t get to claim it later, without dissolving the corporation and re-incorporating with new articles of incorporation.

        That is to say, by default we assume that you’re incorporating with the purpose of running a for-profit entity that complies with whatever the current national and local laws are with regards to for-profit entities that have a presence in the commons.

        If you want to exclude women in your club, you need to put that in there in the articles of incorporation. If you don’t, and one of your members decides to go to Sweden and come back as a woman, and you kick her out, you’re screwed. Dissolve and start over.

        If you want to put in there that you have a religious obligation to provide health care coverage, you either need to specify what constitutes “health care coverage” or you need to accept some third party’s assessment of “coverage” and if that changes to include something you don’t want to cover, you’re screwed. Dissolve and start over.

        If you want to put in there that you donate X percent of your gross receipts to a religious charity, go ahead and stick it in there. If you wind up having to cut out all profit one year because you chose the wrong X, you’re screwed. Dissolve and start over.

        If you want to allow some internal entity rather than a third party one to set some of those decisions, you can do that, too… but again, incorporate with that in your bylaws. If that committee decides this year that you need to stick to donating X and you’re a stockholder but you disagree, you don’t get to claim that you have a religious objection and expect the courts to adjudicate that for you.

        The problem that Hobby Lobby opened up is that we now by definition allow the court to recognize “deeply held religious beliefs”, but we have provided no guidelines as to what that means if two folks with deeply held religious beliefs decide on two things that are orthogonal to each other, and they ask the court to figure it out. We will necessarily be infringing upon someone’s deeply held religious belief if we side with one side over the other.

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      • Patrick – I don’t understand the point you make with respect to original articles of incorporation. If a company desires to discriminate – in your example, wants to exclude women – and it does include this in its founding documents, how does that alleviate the question of whether a public accommodation or other business should be allowed to discriminate?

        It seems to me that the question is about “what sort of business/organization do we want to permit to discriminate”. DavidTC has suggested a clear distinction between for profit/not-for-profit. I like that idea because it avoids putting judges in a position of validating whether a company’s “beliefs” are authentic or just sought for competitive gain. It might be an issue if a non-profit entity was offering a public accommodation, say running a bed-and-breakfast as a nonprofit and refusing to allow certain people to stay there. But it seems like the main public concern is about discrimination in services available in the market, and those are overwhelmingly provided by for-profit businesses.

        So I guess I’m trying to understand what the drawback to that position would be. What would be lost if we said “you can choose to discriminate, and you can pursue a profit, but you can’t gain the regulatory advantages of incorporation to pursue profit and still discriminate”? And are there other useful lines besides profit that should separate those entities that can discriminate and those that can’t – since it seems that the degree of publicness of the service, per the facts of this case, doesn’t work that well as a clear demarcation?

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      • It might be an issue if a non-profit entity was offering a public accommodation, say running a bed-and-breakfast as a nonprofit and refusing to allow certain people to stay there.

        That doesn’t really concern me much either. Such things *should* be few and far between.

        Of course, part of the problem is that current non-profit law is often abused, and a lot of ‘non-profits’ are not…they are being operated for the benefit of the salaried employees. (Scientology springs to mind.)

        But that’s a problem with the law in general, and doesn’t really matter much in this context, because they’re massively outnumbered by for-profit corporations.

        But it seems like the main public concern is about discrimination in services available in the market, and those are overwhelmingly provided by for-profit businesses.

        Exactly. I don’t care if 0.00001% of business transactions are provided by religious non-profits that are, hypothetically, allowed to discriminate. There are a lot of religious non-profits out there, but most of them do not do much economic activity. If a church doesn’t want to hire a black person, or, I dunno, stops a Muslim from buying a muffin at a bake sale, whatever.(1) We’re talking about a *very small* amount of economic activity.

        And, there’s already background discrimination going on that *illegally* affects, I’m just randomly guessing a number here, 10% of all transactions. Having one single piece of property in a town that a church owns and, entirely above-board, say they won’t rent to a gay couple, is nothing to compared to the business that *pretended* to be too busy to make their wedding cake, the three companies that decided one of the gay people wouldn’t be a ‘good fit’ for their corporate culture, and the bank teller that decided to charge them slightly higher interest rates.

        And on top of that, transactions *between* individuals already aren’t subject to any sort of anti-discrimination laws.

        This is why I actually care about the Hobby Lobby decision…0.00001% of transactions being subject to some sort of religious veto, because one party is a religious organization, is one thing, and completely drowned out by illegal discrimination. Hell, it’s drowned out by entirely legal individual discrimination. People can easily can live their entire life without doing any business with religious non-profits. I can’t think of the last time I did so. (And this is assuming all religious non-profits *would* discriminate. They won’t.)

        But when you let *for profits* start doing that, you’re stopped having exceptions that cover at most 0.00001% of all transactions, and now covers 100% of all transactions.

        And this is on top of that problem that for-profits have plenty of reasons to lie. Sure, *this* case is about a (created for this case) for-profit turning away customers and theoretically losing money. But there are *all sorts* of regulations that businesses could suddenly decide they’re morally opposed to if it would save them money to not have to follow them, and now we get dragged into the weeds trying to figure out if they’re being honest or not.

        1) I do, however, think they should be required to post *public notices* that they discriminate, ‘no shirt, no heterosexual orientation, no service’…they don’t get to waste everyone’s time. At least if they would otherwise fall under any public accommodations law.

        And, yes, I know they would not want to do this, because it makes them look bigoted…but there’s a rather obvious reason it makes them look bigoted.

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    • Does it matter at all that these folks let outside ministers in and even advertised being happy to permit civil ceremonies as well*?

      *Though I gather they recently did a scrub on their website to take down that language. Guess they had to pretty up for the lawsuit.

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      • Not under the framework we have now.

        As Mark pointed out in the Hobby Lobby case, you merely have to assert a strongly held religious belief for the court to recognize it (again, I think this is a clearly insufficient standard, but that’s what we have).

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      • Does it matter at all that these folks let outside ministers in and even advertised being happy to permit civil ceremonies as well*?

        Well, it should, but I think Patrick is correct, under the extremely poorly thought-out RFRA, it doesn’t matter what they used to do.


        The corporate rearrangement strikes me as very likely similarly-engineered by their counsel in preparation for filing this suit. If the case ever gets that far, those facts will come out during discovery.

        Yes. I’m not seeing anyone talk about their corporate status *before* all this, so I’m just sorta guessing, but from what I can tell, this was an old married couple that personally owned some property. They:
        a) Charged people to perform weddings, using that property.
        b) Sometimes rented out the property to other people who would hire their own ministers.

        Under the new law, how would work out is (a) is completely unchanged and legal. The law, quite obviously, does not include hiring ministers to perform your wedding. (LIke I said, the only reason that’s not an exception in the law is that it’s almost certainly an exception elsewhere. If it wasn’t, an actual church would have sued.) And it wouldn’t meddle in that minister using their own property for a wedding, duh.

        (b), OTOH, might have been at risk, if they didn’t actually want gay couples renting their chapel and getting married. Now, there are a few ways around this…the most obvious is they could insist that all weddings there involve hiring one of *them*, and it’s *them* you’re paying for and you just get the chapel for free. (They’d probably have to stop secular weddings, though.) Or, alternately, they could have turned the chapel into an actual religious non-profit that exists solely to rent out its space to a few specific (correctly religious) ministers. (And not only stop secular weddings, but carefully vet the ministers.)

        Both those, of course, would have cut into their profits, and entirely secular ceremonies would be out…which is correct, because part of their profits were based on *renting a space out to the public*, and the law says you can’t do that and discriminate, and they wanted to keep doing that. The law made a *secular* business practice of theirs illegal.

        So they’ve managed to deliberately build a corporate structure in which they are *paid* to provide a *religious service*, which is utterly surreal. The law made a secular business practice of theirs illegal, so they deliberately built something under which a ‘religious business practice’ of theirs was illegal.

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      • I don’t find the concept of performing a religious service on a for-profit basis all that surreal, at least when phrased at that level of abstraction.

        Nor would I object very strenuously if the characterization of the service provided is “You get the chapel, but you get us, too, and that’s part of the service. And I think they’d agree with that. You can read a rather detailed version of their biographies, starting from when they first began to follow Jesus in their pre-pubescent years, and how they felt called to this ministry by God, by wading through the first three hundred paragraphs of the complaint.

        Where I think it starts to look artificial is that the Knapps seem to have been entirely happy to take a couple’s money and do a secular ceremony, omitting all that religious stuff from the core activity of what they characterize as their “ministry.” Indeed, they are probably still happy to do that to this day.

        That suggests to me that the label of “ministry” on their core business activity really is a recent pastiche rather than an actual religious activity. Bear in mind, I’m inclined to be readily cynical about such things.

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      • I don’t find the concept of performing a religious service on a for-profit basis all that surreal, at least when phrased at that level of abstraction.

        Really? I don’t have any real *objection* to it, it’s not like I think they should be outlawed, but I think there’s a very clear dividing line between actual religious work, and for-profit work that’s been hit with a light vanish of ‘religion’.

        This is not to say the latter are dishonest, or should be banned in some way. Businesses can have all sorts of religious or philosophical underpinnings that people can try to operate them by, and I have no problem with those being stated.

        But in my mind, true religious work is done without the expectation of profit. And *only that* is what should get any sort of religious exemptions, at least as a corporate structure. (Individual religious exemptions are somewhat different.)

        Or, to put it another way: True religious work is *supposed* to be charitable, in the legal sense. It is supposed to involve people doing things to better society, not to make money. Money is obviously needed to keep things running, but that is not the goal. The goal is to benefit society.

        And I’m already being rather generous about accepting *all sorts* of silliness about how denying weddings to gay people ‘benefits society’. I think that’s horrifically wrong, but that is a *religious* belief the law isn’t supposed to touch, so I’ll let it pass by without comment.

        But you have to be providing weddings in the first place for actual religious reasons, out of some sort of moral driving force. And not for profit. At least if you want some sort of religious exception to a law.

        If you were just *selling* weddings, yeah, you’ve got to sell them to everyone.

        That suggests to me that the label of “ministry” on their core business activity really is a recent pastiche rather than an actual religious activity. Bear in mind, I’m inclined to be readily cynical about such things.

        Well, yeah, when someone sets up a structure solely so the law would force them to do something, and then sues over that law, I tend to be cynical too.

        Even *if* the restructuring had been coincidental, and they *later* figured out they might be in violation of the law, I can’t imagine their lawyer didn’t suggest ‘Of course, you could just stop renting the space out altogether, and just rent yourself out and bring the space for free, at which point you’re covered under the ministerial exception’. Which they could have quickly done instead of filing a lawsuit.

        I’d have a slight bit of sympathy if they had been suddenly faced with a gay couple at the door, refuse to rent the space to them, and were sued. Or had tried what I had suggested and gotten sued anyway. But that’s not what happened.

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  12. Last week (to pastors in Houston): “You’re the one that chose to be a church, and these are the consequences!”

    This week (to pastors in Idaho): “You’re the one that chose not to be a church, and these are the consequences!”

    Both weeks: “I’m so tired of these people trying to have it both ways!”

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    • Ah, yes, all that *secret* religious instruction given out *during a sermon*.

      Houston’s subpoena was clearly somewhat broad, but asking for the instructions given to people in a petition drive is entirely reasonable when there is a lawsuit over that petition drive. (I especially love the delusional idea that simply because someone isn’t party to a suit, they don’t have to answer questions about it. Uh, no. Especially when they participated in the process *the suit is about*.)

      In fact, the focus on *sermons* makes the entire thing rather stupider than it is. It is entirely reasonable for a church to assert that private communications that talk about the mayor and the law are not relevant. (And some of that would be protected religious consoling and discussion.) That would be a reasonable objections, and in the real world, if presented to a court, would probably have narrowed the subpoena a bit.

      The only thing actually relevant to this lawsuit are the instructions (Both the official instructions, private communications about how to act, and statements about the petition drive in other places, like in sermons.) that the people participating in the petition drive got, not how church administrators feels about the issues. *That* would be a reasonable complaint.

      This, the only relevant thing the city should have asked for…turns out to be the thing everyone is complaining about, because people are complete idiots, and somehow have forgotten that sermons are things given in front of a random crowd of people (Not even limited to members), and can’t *possibly* be private speech.

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    • I hadn’t heard about what’s going on in Houston until I read these comments, but as far as I can tell it’s not remotely a case of pastors being forced to either marry a same-sex couple or face punishment; it’s about local opposition to a city ordinance (PDF), which passed a couple days ago. The relevant legal battle involved a subpoena and other stuff.

      Anyway, there’s no inconsistency here. Saying “If you wanted to avoid gay marriage, you should have been an actual church” doesn’t logically imply “if you were a church, then you wouldn’t be required to to anything you didn’t like if it can be talked about in the same sentence as gay marriage.”

      Plus, I don’t think anyone said that the Houston churches are facing legal problems (this subpoena or whatever) that they wouldn’t have if they were non-church organizations.

      Regardless, I have to admit that until I learned more about it, I thought Mr. Blue might have been making a solid point, because I can indeed imagine different courts coming to opposite conclusions on the same issue here.

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  13. Serious question #1: how is refusing to marry a couple because they are homosexual different from, say, refusing to marry a couple because they are not of the same skin colour?

    If they’re not at all that different, would you apply the rules the same either way?

    Serious question #2: if it is legal for a homosexual couple to be married, but every single officiator of such ceremonies refuses to on the basis that they are a homosexual couple, is there any difference between it being legal or not?

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    • Well, I’ll take a stab at #1. AFAIK, there were no major religions explicitly prohibiting interracial sex, whereas the Big Three Abrahamic ones arguably do have prohibitions on (at least male) homosexuality kind of baked in there.

      Now, you or I don’t necessarily have to care what some desert nomads a few thousand years ago thought, but for a (very large) group of modern people who believe their God tells them something is a sin, forcing them to sanction that sin via the performance of another activity (marriage) that they see as sanctified by their God presents a conundrum of conscience (for them, for obvious reasons; for us, because allowing people to follow their beliefs without interference, within reason, is a hallmark of a free society); it also presents a political conundrum, because there are a LOT of them.

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      • Well, I’ll take a stab at #1. AFAIK, there were no major religions explicitly prohibiting interracial sex, whereas the Big Three Abrahamic ones arguably do have prohibitions on (at least male) homosexuality kind of baked in there
        That is absolutely NOT what at least one of those Big Three was claiming in Loving.

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      • Well, I’ll take a stab at #1. AFAIK, there were no major religions explicitly prohibiting interracial sex,

        Ha ha ha. There are *plenty* of verses in the Bible used to justify that. Most of them out of context, but they do exist.

        The only reason there aren’t any religions prohibiting that is that they *stopped*. Recently. Many of them well *after* the civil right’s movement. Bob Jones stopped in *2000*.

        As XKCD pointed out ( http://xkcd.com/1431/ ), the majority of people didn’t accept interracial dating until *1995*, and a good portion of that was based on religious beliefs, or at least *crouched* in religious beliefs. (As someone who lives in the South and was 16 in 1995, let me assure you, this is exactly how I remember.)

        Big Three Abrahamic ones arguably do have prohibitions on (at least male) homosexuality kind of baked in there.

        Most branches of Judaism don’t. (To explain: From what I understand, the Torah is not just randomly read. It is interrupted via millennium of understanding via the Talmud and other things. Asserting ‘It’s in the religious text’ is wrong…you almost certainly have not read all Jewish religious texts about homosexuality. Neither you nor I get to tell Jews how their religious texts work.) Most branches of Judaism have come out with statements saying that same-sex marriage and modern homosexuality is compatible with Judaism. The only branch that might still think there’s a prohibition is some (not all) Orthodox groups, and those are a minority, so saying that Judaism, as a whole, has a prohibition on male homosexuality is wrong.

        And I, as a Christian, dispute the idea that the Bible gives me any directions about homosexuality at all. It appears, in the Old Testament, to give *Jews* some directions about homosexuality, but as I am not Jewish, and not required to follow Jewish law, those don’t apply to me. (And if I actually *did* follow Jewish law, it appears the people in charge of those read them differently, see above.) There are also some verses in New Testament that appear to say something about homosexuality, but those are extremely unclear as to what, exactly, they’re talking about, and considering the context of the verses, it’s almost certainly some sort of pagan religious ceremony instead of just ‘two guys having sex’.

        The right wing has successfully tricked a lot of people into thinking that homosexuality is something prohibited by many religions, and *even if* it’s legal, it’s still a sin. There are a lot of people out there that are pro-gay marriage, and they think we should have it *despite* God telling us otherwise.

        I *categorically* reject this interpretation of Christian doctrine. I do not support gay marriage *despite* my religion telling me otherwise, I support it because my religion is silent on homosexuality specifically (Despite what people try to claim), and supporting it generally follows the principles of my religion. (And because I’m a Baptist and we’re a bunch of anarchists, I’m allowed to say things like that by myself…but other, more hierarchical Christian denominations have come to the same conclusion.)

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      • The only Judaism that I recognize is Reform, myself. I also consider Sunni to be authentic Islam and Shiite to be heretical. When it comes to Hinduism, I’m pretty much a Shaivist. I don’t know enough about Shinto to say which ones are authentic and which ones are bullshit, but I’ll try to google that this weekend.

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      • Yes, it does make Glyph wrong here (sorry, Glyph, but at least it’s a rare thing). It really doesn’t matter even if it’s one of the major religions. If _a_ religion disbelieves in interracial marriage as a theological or doctrinal matter, that’s functionally no different for them than disbelieving in SSM for the same reasons.

        And as far as Christianity goes, it has innumerable sects. Among those associated with Christian Identity, there are those who believe that non-whites descended from lesser beings who came before Adam and Eve, and those who believe non-whites come from a liaison between Eve and the snake. (Whites, of course, they believe are the true descendants of Adam and Eve.)

        Of course it can be argued that they’re full of shit, and that the Abrahamic traditions properly understood don’t justify such theology. But it can also be argued that asking the Courts to weigh in on such a question is unwise. In fact it can be argued both that they’re full of shit and that the Courts should stay out of the question.

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      • – Bully for you, and people who think as you do.

        Including, to some degree, me!

        But acting like the prohibition isn’t IN there seems kinda…off to me.

        I mean, this seems less-ambiguous to me than the Second Amendent, no matter the translation.

        There’s lots of people who believe that it’s no problem, as you and I do. I eat shellfish too! I don’t keep kosher. Neither do some of the Jews around here.

        Doesn’t change the fact that there’s lots and lots of people who believe otherwise, and saying “they’re wrong”, or “well, they are just the Orthodox/fundamentalists/old-fashioned” or “they are fewer than you think” (basically, ‘no true Scotsmanning’ huge chunks of the Big Three) changes the fundamental issue of freedom of conscience not at all (though admittedly it can change the political calculus).

        Even if they ARE the minority. Maybe especially.

        What we are dealing with here is trying to secure the rights of one minority (gay people) while also securing the rights of another (arguably, religious) minority to NOT have to do something they believe their God says they shouldn’t.

        Remember, we’re potentially not asking these people simply to stand by and remain silent while gay people get married elsewhere; we are potentially asking them to actively, personally marry gay people (or at least, facilitate it).

        Do I wish they would? Yeah.

        Do I feel we should force them to? No.

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      • Of course it can be argued that they’re full of shit, and that the Abrahamic traditions properly understood don’t justify such theology. But it can also be argued that asking the Courts to weigh in on such a question is unwise. In fact it can be argued both that they’re full of shit and that the Courts should stay out of the question.

        Yes.

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      • And as far as Christianity goes, it has innumerable sects. Among those associated with Christian Identity, there are those who believe that non-whites descended from lesser beings who came before Adam and Eve, and those who believe non-whites come from a liaison between Eve and the snake. (Whites, of course, they believe are the true descendants of Adam and Eve.)

        The two theories I know of, OTOH, have Adam and the demon Lilith (Adam’s first wife) having kids, which is sorta your first theory, or the theory that non-whites were descended from Cain, with dark skin being ‘the mark of Cain’. I never heard of ‘Eve and the snake’.

        But who can keep track of the dumb theories of racists?

        Of course it can be argued that they’re full of shit, and that the Abrahamic traditions properly understood don’t justify such theology. But it can also be argued that asking the Courts to weigh in on such a question is unwise.

        Right. I’ll argue they’re full of shit, but courts need to stay away.

        The danger of intermingling government and religion isn’t *just* to government. In fact, the danger to religion is being clearly demonstrated currently as the right wing has managed to intermingle Christian and right-wing social beliefs, causing church attendance to *plummet* among young people.


        I mean, this seems less-ambiguous to me than the Second Amendent, no matter the translation.

        The context of that verse, Leviticus 20:1-2) The LORD said to Moses, “Say to the Israelites: ‘Any Israelite or any foreigner residing in Israel who sacrifices any of his children to Molek is to be put to death. The members of the community are to stone him.

        The quote continue onward, and contains the entire chapter. It’s something Moses is to order of the Israelites. Almost every single chapter in Leviticus, and all the ‘law’ chapters, are something the ‘Israelites’ are supposed to do. Are you an Israelite? Am I?

        There was a *great big* discussion at the start of Christianity as to whether or not early non-Jewish Christians had to follow Jewish law. During the formation of the first Christian churches, it was a huge issue. It was settled pretty definitively, and settled early enough in Christianity that part of it *made it into the text of the Bible*, in Acts 10:28. The answer was ‘no’.

        This isn’t really something that is up for debate *within* Christianity. We’re talking about something hashed out before *The Trinity* was hashed out, historically speaking.

        A lot of Christian sects seem to suddenly ‘forget’ two millennia of history when they want to condemn homosexuality. But anyone who tries to cite *any* Jewish law as applicable to Christians is either confused or technically heretical on a fairly well-settled question in Christianity. (I mean, they can be heretical if they *want* to be, but if their sect is going to schism like that, it needs to *state* it is doing so, and not just kinda wander over the line because it doesn’t like gay people.)

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      • Pretty sure most Christian sects still accept Romans and Corinthians as canon.

        http://biblehub.com/romans/1-27.htm

        http://biblehub.com/1_corinthians/6-9.htm

        But look, it *doesn’t really matter* how you or I interpret *that* question, at all, for the purposes of the question at hand. What matters is how other people interpret it.

        I’m just glad they aren’t still trying to stone anybody, for the most part. You want to go preach to them and tell them they have it all wrong, go for it.

        But I’m reluctant to force them to act against *their understanding of their God’s will, as communicated via their Holy Book* unless I have to, and I don’t think I have to; there are other ways gay people can get married.

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      • Pretty sure most Christian sects still accept Romans and Corinthians as canon.

        You will notice that that Romans a) does not actually condemn or punish any homosexual behavior, b) is taking place at a drunken pagan orgy. Heck, the homosexual behavior is a *punishment from God* for pagan worship, which is a bit surreal for something that’s supposed to be sinful. And in the end, they get the ‘the appropriate penalty for their perversion’, which is, you will notice, not being stoned. In fact, it’s apparently *nothing at all*. (Well, besides apparently being turned into jerks. But that seems to be because ‘For they exchanged the truth of God for a lie, and worshiped and served the creature rather than the Creator, who is blessed forever’, not the gay sex.)

        Oh, and believe me, you don’t want me to start in about 1 Corinthians and ‘arsenokoitai’, the word that wasn’t even translated as ‘homosexual’ until the 1900s, and is a Greek word that we have very little idea of the meaning of, and there is literally no textual evidence it means ‘homosexual’. Early Christian first century writers (The people that would best know what the word means) that *debated* same-sex relationships didn’t bother to cite this verse as for or against homosexuality, nor did they use ‘arsenokoitai’. They instead using the already existing Greek word that meant ‘homosexual’.

        If the *people who spoke first century Greek* didn’t think this verse was relevant when debating homosexual relationships, I fail to see why we should suddenly start thinking it is, even if some Bibles, for a while, translated a word in it as ‘homosexual’. (And you’ll notice they’re backing off again, as that was pretty clearly an inaccurate and political translation.)

        (I find it interesting that you didn’t list 1 Timothy, which repeats the list from 1 Corinthians. Did you just leave that out randomly, or were you trying to make the point that churches *really shouldn’t* accept that as canon, as it, and all of the Timothys, are a forgery and Paul didn’t write them?)

        But look, it *doesn’t really matter* how you or I interpret *that* question, at all, for the purposes of the question at hand.

        I am just tired of letting the right-wing nonsense about what the Bible says continue unchecked. Not only is Christianity not of one mind about it, but an argument can be made that *they* are the heretics, running around citing Jewish law and other craziness, over something that is pretty unclear and not actually that important.

        But I’m reluctant to force them to act against *their understanding of their God’s will, as communicated via their Holy Book* unless I have to, and I don’t think I have to; there are other ways gay people can get married.

        No one is forcing them to do anything. They are the ones that set up their chapel to make sure they didn’t get the religious exception that churches did, and then pre-emptively sued.

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      • Sorry, ‘I am just tired of letting the right-wing nonsense about what the Bible says continue unchecked.’ is a bit harsher than I intended. I didn’t mean *you* were trying to promote right-wing nonsense on purpose.

        I just mean that certain cultural warriors have managed to define something as ‘truth’ that is not, in fact, true, and everyone happily runs around repeating it. People will talk about how the Bible is anti-homosexuality, even people who *disagree* with it being so. The right has turned it into ‘follow the Bible or be pro-gay’. (And it’s turned into some giant mishmash of politics and religions.)

        This is completely bullshit, the Bible does not actually say that, and it certainly doesn’t say it *clearly*(1), and it really pisses me off that they’ve managed to trick everyone into going along with it.

        1) As opposed to a lot of things it does say *very very clearly* but we just completely ignore.

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      • – I didn’t leave out Timothy to make any point; the two NT verses I listed were simply cross-referenced to the Leviticus one on that same site due to subject matter. I was reared in a Christian environment and dimly recall certain things, but am not a Bible scholar by any means.

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      • I wonder if it would make sense to assume away the notion that religions in themselves actually proscribe and prescribe, rather than this being the action of a religious community and/or individual who is merely “pointing to” the religion, as if it did all the work and tied the believers’ hands.

        In other words, regardless of whether we’re talking law or ethics, how much sense does it make to respond to someone claiming a religious right to do X or avoid Y with a reply like “Let’s consult your holy book and see what it really says, shall we?” I mean, that’s a reasonable debate within a religion (I’m not objecting to DavidTC’s arguments about the Bible and homosexuality, but only in the sense that I think other Christians ought to agree with him, not in the sense that the Christian Right is somehow wrong about what Christianity “really” is), just not outside it.

        Theoretically, any well-established religious text could say anything one way or the other. Surely what matters is what a given person claims to actually believe. (In other words, I’m making the common atheist point, what makes religious objections distinct from secular ones?) By all means, the sincerity of that belief can become a subject of question, but not the legitimacy of it with respect to the text. Otherwise we get the sort of silliness that Jaybird mocks, where non-Muslims declare that Shiite Islam is a heresy, etc.

        If there were a law that somehow compelled a pro-birth-control person to act against their religious conscience (such as by forbidding them from providing their employees with free birth control), then they should have just as much standing as Hobby Lobby, even if they happen to be Catholic and hence raise a couple eyebrows for their claims.

        Of course, my ultimate view is that it should be irrelevant because the real issue is whether we’re talking about a good law or a bad law in general. I’m wary of religious exceptions even when I think they make sense, because I don’t see why we need to give a church any more legitimacy than Bob’s Homophobic Non-Profit Wedding Place. Either they’re both forced to conduct marriage ceremonies or neither is, and likewise with the tangential-to-wedding stuff. (I’m okay with a hybrid solution: Every baker is required to bake for weddings regardless of couples’ sexes, but every marriage-officiant has the right to be picky. This story about an overlap of the two shows why it’s not that simple, however.)

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      • – Thinking about this some more, I probably shouldn’t have jumped in to begin with, since it is possible the original question I was responding to (and certainly, the OP) was really about the *legal* aspects of the situation (RFRA, business/religious distinction, public accommodation, Hobby Lobby etc.) when what I was answering was (to me, from a libertarianish POV) the *ideal/abstract* aspects.

        That is, even if something is a business, I don’t generally support forcing people to serve those that they don’t wish to; but that street should ideally work both ways, regardless of who holds the “incorrect” view from my POV.

        If me and my blushing bride-to-be believe that God told us in a revelation that blacks and gays are inferior, a black minister (really, any minister) should be free to tell us he won’t marry us, and a gay restaurateur should be free to decline to serve us a sandwich.

        If I believe that my Holy Book tells me that women are inferior and should be subject to men, a female employer (any employer) should be able to say, nope, sorry, you won’t be a good fit here.

        They are discriminating against my hypothetical religious beliefs; but they should be able to do that, IMO.

        We’ve covered this ground before here, but I can’t think of a coherent logical argument that gives us the latitude to allow only what I see as “good” discrimination (the kind where people follow their conscience/feelings, and refuse to associate with those they don’t wish to associate with) and not also the bad kind (where people are acting on their own bigotry), except for “I like black/gay people, but I don’t like people who hold beliefs that I find incorrect and/or repugnant”, which isn’t really an argument, so much as a statement of fact.

        (I am aware that the *legal* question is different, with gay/black being a protected status in the US, and “incorrect and/or repugnant in my opinion” not being a protected status; but in my hypo, the “incorrect and/or repugnant” are also claiming religious – that is, protected – status against discrimination. Of course we can try to involve the courts to see which parts of their religious claims are ‘truly’ religious, but IMO that way lies madness).

        (I am also aware that I am in the minority on this, and yes, the CRA was rectifying a real problem, and no, I don’t want to repeal it. This may be a huge conceptual contradiction. So be it.)

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    • #1 – In addition to what Glyph says, different things are approached differently. A lot of people would be more hostile to the Knapps if they discriminated on the basis of race, but would be less hostile if he only married Pentacostals. In any event, I don’t think churches actually are required to marry interracial couples. I’m among those that would be really hostile to the Knapps if they did decline interracial marriage, though I would still probably view it as an ill-used right to their religious beliefs because of the relationship between religion and marriage. (No, it’s not a right I would extend to a restaurant.)

      With regard to #2, that’s not really an issue here as there is a government supplied option. (No, Justices of the Peace should not be allowed to discriminate.)

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      • A lot of people would be more hostile to the Knapps if they discriminated on the basis of race, but would be less hostile if he only married Pentacostals.

        Not me. Public accommodations are not supposed to discriminate on the basis of religion. (The problem here, of course, is that they have, apparently deliberately, turned a religious service into something subject to public accommodation laws.)

        It might actually be interesting to point this out to the ‘pro-Knapp’ people. If my local grocery store starts blessing the food it sells and asserting it’s a religious ceremony, can it refuse to sell that food to Jews? Or, because the religious exemptions also allow discrimination based on race, to black people?

        People didn’t seem to believe me WRT Hobby Lobby about the absolute disaster of letting for-profit businesses call any behavior ‘a religious practice’ and letting them use the RFRA. Maybe this case will convince them. (Hell, I didn’t even think about people doing it *from this direction*, which is to turn an actual legit religious practice into a for-profit business behavior.)

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    • Let me take a stab at #2

      It seems that we should distinguish 2 things. On the one hand is a ceremony which is admittedly very valuable and which has enormous social, cultural and for at least some people religious meaning. There is a further fact of registering the marriage, which in principle can be done by a civil servant* who should be present in at least every state if not every major urban area. All that is required are two witnesses for each side and the marriage can in principle be registered. Having a registered marriage(even if there is no ceremony per se) still puts you in a particular legal position vis a vis your spouse and there are certain attendant benefits associated with inheritance, taxes, custody of children, hospital visits, power of attorney etc that would be present if it was legal even if nobody wanted to officiate. Those things would be a lot harder to get if gay marriage was illegal.

      *It strikes me that becoming a registrar of marriages is not too difficult a task. (Joey in Friends somehow managed it). Even if there is no civil servant, being unable to find 5 friends who would support your union means you have a lot more serious problems than being subject to bigotry. If a straight couple cannot get 4 other witnesses, they too cannot get married. (Although perhaps finding 4 other witnesses is perhaps a lot easier for straight couples than it is for homosexual ones.

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    • I don’t believe you are actually serious with your first question, but I will humor you by answering:

      Because in a homosexual marriage both spouses are of the same gender and in an interracial (heterosexual) marriage both spouses are of the opposite gender.

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      • I truly am serious about the question. Its purpose was to ask what is the difference between a discrimination that is in vogue — and one that can carry a high “icky” factor even for supporters, which makes it easy to distance yourself from it –, and a discrimination which is totally not in vogue.

        They are both discriminatory actions which, as you can read from other authors, have been largely due to religious reasons.

        The thought experiment in #2 leads me to disagree with the conclusion of the author of this blog post. I feel that, for services provided by the government, it is right that they should be equally available to all people who meet the critera necessary to obtain those services. Criteria may include the necessary funding; in marriage’s case not being married to another person without death or divorce; all the usual stuff.

        Just as interracial marriages have been allowed in the USA since 1967, homosexuals are now allowed to marry in many states. All other things being equal, they should be given equal access to this service.

        Further, I would argue that one of the responsibilities of a person who is an executor of a government service is that he or she may not discriminate when giving access to that service, given that all normal criteria are met.

        And so I argue that the court ruling is correct in the title: the pastor must agree to marry the couple.

        NOW, the whole religious ceremony that sometimes goes with it? Totally not a government service, and so is something else entirely.

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    • Serious question #1: how is refusing to marry a couple because they are homosexual different from, say, refusing to marry a couple because they are not of the same skin colour?

      If they’re not at all that different, would you apply the rules the same either way?

      This is a strange question. How is an orange different from a grapefruit? They’re both citrus fruits about the same hue, right?

      The two things are different, because they are different. If they were not different, they would be the same thing.

      There are all sorts of reason why interracial marriage is not like same-sex marriage. And if I think really hard, I can come up with two ways that they are the same: they both involve marriage and they both involve something for which there was/is social and legal prohibitions. Sure, they can both be considered civil rights issues, but not every civil rights issue is the same. And not every civil rights issue ought to have the same set of solutions.

      The whole point of this conversation is that we are in the midst of deciding on the rules about same-sex marriage and other people’s obligations to honor and/or play a supporting role in them.

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      • This reads like you being deliberately obtuse. It’s pretty clear that Kazdragon is asking whether or not the logic of the plaintiffs above would also apply to someone with a religious objection to interracial marriage. Obviously the two are different; the question is whether there is any difference between the two that ought to make the law treat one situation differently from the other. I, for one, don’t see one.

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      • It is clear what is asking. What is not clear is why we ought to start with the assumption that interracial marriage is like same sex marriage, other than the fact that some people have objections to both of them. I can think of lots of things that people object to, but that doesn’t mean that we ought to treat all of those things the same way.

        So to answer the question: yes, the law ought to treat these two things differently, because they are different things. That does not, of course, mean that the law cannot come to similar conclusions, just that we ought to consider each case based on the merits.

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      • Well then answer the question. What is it about opposition to interracial marriage that the law ought to treat it differently than opposition to Same-sex marriage? It’s not enough to just say that they are different because they are different. You have to tell me what differences between the two should matter.

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      • It’s not enough to just say that they are different because they are different.

        Yes. Yes it is. That is exactly what the word different means.

        You have to tell me what differences between the two should matter.

        No. No I do not. The burden is on the person making the comparison to show why I ought to view these two things the same way. Sorry, but those are just the rules.

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      • I think that you’ll find that you have to agree on what “marriage” means, at which point the differences between homosexual marriage and biracial marriage will either collapse into the same thing or be pretty self-evidently different.

        That’s not a “one side has to convince the other”, because it’s hard to convince people to accept a semantic frame as an assertive argument. You have to work on it together.

        Normally I’d agree the person making the claim has the burden of proof, but I don’t think this is a very complicated claim.

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  14. I have a relatively simple compromise.

    1) you are now a church! You can discriminate so long as you do step 2
    2) You will post a sign visible to the public that you are exercising your option to discriminate against gay couples.

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  15. Burt, great post. My comments…

    Granted that RFRA only protects “persons,” not business entities…

    As a side note, it burns me to no end that I was not able to effectively counter this during our arguments in the Ordinary Court. There were a number of briefs that discussed this very issue, and at the very least, it would have been an interesting perspective to include as a counter point to your arguments. I couldn’t pull it together quickly enough. Every time I read discussions like this, I’m reminded of it and I’m too competitive to let it go. ;)

    All good…

    So right away, I see a problem: the case law rather strongly suggests that this is not a compelling interest. Maybe it’s not an insurmountable one; maybe since 1976, we’ve decided as a culture that enforcing non-discrimination is indeed a “compelling,” and not merely an “important,” thing for our government to do, such that it becomes difficult to have a civilized society without it.

    It is indeed compelling. When the Massachusetts Supreme Judicial Court legalized same sex marriage in 2003, the negative responses to it were overwhelming. Setting aside that the fact that one of the first responses to the ruling was to amend the U.S. Constitution to define marriage as being between one man and one woman, a number of states not only outlawed same sex marriage but also went even further and outlawed civil unions, domestic partnerships and any other possible arrangements that could allow gay couples to receive legal benefits. This went beyond marriage. This was a wholesale suppression of rights and privileges based on nothing more than the fact that these people were of a different sexual orientation (the pro-Prop 8 campaign was hideously ugly in this respect). It was a such a concerted effort to render gay individuals as second class citizens that I’d argue it that it has enough similarities to racial discrimination to require remedies through the law.

    In effect, you take the actions of the “pro family” groups and hoist them on their own petards. I’d say it’s very compelling to address these wrongs. As far as case law is concerned, I’d lean very heavily on Romer and Lawrence.

    We really shouldn’t compel the Knapps to perform a ceremony that is contrary to their religion, even if it is in the context of a public accommodation. The level of intimacy involved in actually presiding over that ceremony is very high (as I know from having presided over weddings myself). I’m comfortable with a result that tells a same-sex couple, sorry, you can’t make this particular someone do this very thing, preside over a wedding ceremony, especially not if there are reasonable alternatives readily at hand,

    I agree, but I think the line between presiding and participating is not easily distinguished because the level of intimacy involved in a wedding does not only apply to the people presiding over it but also every participant in the room (at least in theory). If participation is the threshold and you agreed with that, you may have to take another look at your opinion on the Elaine Photography case (at least with respect to the wedding ceremony).

    If we say the Knapps don’t have to preside over the ceremony, then we petty much necessarily also let them not make their banquet hall or other physical facilities available. That seems more like a restaurant to me, and I think we ought to compel a restaurant to serve a same-sex couple the same way it serves a mixed-sex couple.

    The use of facilities for the purpose of a party or a reception are no different than a restaurant and I think public accommodations laws apply. The owners are not presiding over an intimate ceremony nor are they being directly asked to pronounce a same sex couple as married in conflict with their religious beliefs. Also, any vendors hired for such an event (bakers, photographers, etc. etc.) should be subject to public accommodations laws. There’s no reason for an exemption and the services in questions do not conflict with any religious beliefs directly.

    The idea of, “If you’re open to the public, you’re open to the public so you have to serve the public” is a rule that I can get behind morally and intellectually, because a coherent rule can be made out of it.

    As much as some people may think otherwise, clean rules are impossible here and I don’t think that would have been different had Hobby Lobby lost. It’s been six months but that may have been a reason why I tried so hard to argue against you on the issue of what rights, if any, should for-profit corporations have. To categorically reject such rights comes across to me as too simplistic, almost in the same way as people throw out “General Welfare” in any conversation about the Constitution (you know my views on that).

    My $.02. Great job.

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    • In effect, you take the actions of the “pro family” groups and hoist them on their own petards.

      Not only that, but it was rather amazing some of the stuff that came out of their own mouths. They thought could say all these bigoted stuff, and then assumed they could, straight-faced, turn around and come up with a ‘good justification’ for banning gay marriage and everyone would ignore all the bigoted stuff.

      …of course, they failed on coming up with the ‘good justification’ in the first place (It turns out that gay people don’t actually cause hurricanes.), so that plan didn’t exactly work. But it wouldn’t have worked otherwise!

      The anti-gay people have spent so long shooting themselves in the foot with their own comments and causing enough deliberate harm to gay people that even if the courts had ruled in 2008 or whenever that there was a justification for banning gay marriage, their side *would still be in trouble*.

      Even if they had some sort of legal theory under which anti-gay marriage laws *might* be justified, the fact is, every one of those law was passed solely to be discriminatory, and very explicitly stated to be so at the time. It would have been a little too late to suddenly flip around to ‘Of course, we’re not anti-gay, we made this completely rational law for that specific policy reason!’ when all their previous comments are on record.

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    • Not all “participation” is the same thing; if you want to suggest that there may be a sliding scale rather than a bright line about levels of intimacy I won’t argue with you. Nearly all participants to this discussion seem to have an intuitive sense that presiding over the ceremony is beyond whatever threshold of intimacy is decisive to justify letting an individual absent herself based on individual conscience; nearly all participants here seem to think that a baker, a deejay, or a photographer is below that threshold.

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    • Not only that, but it was rather amazing some of the stuff that came out of their own mouths. They thought could say all these bigoted stuff, and then assumed they could, straight-faced, turn around and come up with a ‘good justification’ for banning gay marriage and everyone would ignore all the bigoted stuff.

      The only advantage that they had circa the Goodridge ruling was that broader acceptance in society had not been achieved so they could capitalize on a lot of uncertainty and discomfort. What really gets me now is that the same people complaining about same sex marriage are now complaining about being “oppressed” or “ostracized”. They can go f–k themselves all the way down to the very last bigot.

      Even if they had some sort of legal theory under which anti-gay marriage laws *might* be justified, the fact is, every one of those law was passed solely to be discriminatory, and very explicitly stated to be so at the time. It would have been a little too late to suddenly flip around to ‘Of course, we’re not anti-gay, we made this completely rational law for that specific policy reason!’ when all their previous comments are on record.

      To the extent it’s a legal theory, it was based on letting democratic majorities decide deeply divided social issues (a convenient argument to make when one is in the same majority). This is why I will always distrust activist legislatures more than I’ll distrust activist judges.

      Nearly all participants to this discussion seem to have an intuitive sense that presiding over the ceremony is beyond whatever threshold of intimacy is decisive to justify letting an individual absent herself based on individual conscience; nearly all participants here seem to think that a baker, a deejay, or a photographer is below that threshold.

      I agree. I think that they are below that threshold because attendance at the ceremony is not mandatory for them to carry out the work that they’re being hired to do. However, that can’t be said for a photographer who is asked to take pictures of the ceremony (although it applies for the same photographer as applied to any other photos in any other setting). I’m not quite sure how to work around that other than to provide exceptions in the event that attendance at a ceremony itself is required. I’m putting that out there as a suggestion. I haven’t thought it through all the way.

      Related to a comment made earlier, I feel like I”m trying to come up with a compromise to accommodate a side of this debate that I’ve spent the last ten years or so beating the hell out of. Weird.

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  16. As a mostly-irrelevant aside, I note that my parents were married in Coeur D’Alene in September of 1941, after taking the train there from Seattle. They said they were married by a Justice of the Peace, and his wife stood as witness. They gave the reason for this trip to be the lack of a three-day waiting period in Idaho, as opposed to Washington.

    I don’t know for sure if that condition still pertains, though I suspect it does, and drives some of the wedding business in Coeur D’Alene.

    I’m with Burt in thinking that forcing someone to perform a SSM ceremony, or a church to host such a ceremony is not what I wanted, nor what the law should require.

    As a business, I think the Hitching Post Lakeside Chapel has an easy remedy. They could form a business association with some pastor in the area who is willing to perform SSM ceremonies. Any such case would be referred to said pastor. Why isn’t the possibility such an arrangement part of the discussion?

    Also, as I understand employment law (particularly in CA), if I ran a wedding chapel business, it would be fair for me to ask prospective employees or contractors if they were comfortable performing SSM, and if they were not, it would be ok not to hire them, since they could not fulfill the duties of the position. Is this accurate?

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    • as I understand employment law (particularly in CA), if I ran a wedding chapel business, it would be fair for me to ask prospective employees or contractors if they were comfortable performing SSM, and if they were not, it would be ok not to hire them, since they could not fulfill the duties of the position. Is this accurate?

      you have just asked one of the most interesting questions I will address today. That would be brand-new ground to break, to my knowledge, in California or elsewhere. It might not be OK because it might constitute discrimination on the basis of religion. But it might be OK because it’s a BFOQ. I do not want to have to be the lawyer who tells an employer client “There just plain isn’t any law out there and there is no decision you can make in this situation, to hire or not to hire, that won’t expose you to a substantial risk of litigation with a reasonable chance of at least two tiers of appellate review.”

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      • That’s easier.

        Q: This business performs same-sex marriage ceremonies and related services. Is there any reason that you would be unable to participate in any aspect of provision of such a service?

        BUT NOT:

        Q: This business performs same-sex marriage ceremonies and related services. Do you have a religious objection to participation in any aspect of provision of such a service?

        Not really that much different from asking questions about availability at particular times of day when it just so happens that child care becomes an issue — you can ask, “We need someone here until 5:00 p.m. every day, is that an issue?” but not “You’re not going to need to get off work for an hour from 2:30 to 3:30 to pick up your kids from school, are you?”

        The second question is discriminatory as to marital and family status. The first, and appropriate, question is focused only on the applicant’s ability to perform the objective job requirements.

        The peril comes not from asking the (properly-phrased) question, but rather from the business’ response to an affirmative answer.

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      • Following up on ‘s question has produced some very lively discussions amongst my colleagues. Every lawyer in the firm has had to mull this one over and talk it through, and this morning I got feedback from other lawyers who went home and talked it through with their spouses who are also lawyers.

        The consensus is that, given that the owner of the establishment is willing to open the business to SSM ceremonies, a willingness to perform an SSM ceremony is indeed a BFOQ, so the applicant who expresses unwillingness can legitimately be turned away without running afoul of the unlawful employment practice of religious discrimination. Having to schedule or specially retain a different minister for those customers would be too great a burden on the employer to constitute a “reasonable” accommodation.

        But we all also agree that it’s a pretty close call the way things are at the moment.

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  17. Frankly I see no difference in a sign that says “no shirts, no shoes, no service” and “no gays”. If you can get away with one, why can’t you with the other?

    Can a business refuse service and decline to specify why?

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  18. Sure, maybe this is some people pulling shady crap.

    Or maybe what’s happening is that in a post-Hobby Lobby world, we now know that certain language is needed in a business’s charter for that business’s owners to legally make religious belief part of their determination about who to contract with.

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    • What I see here is a business re-casting itself to mold in to the broadly-interpreted RFRA so the owners can avoid a law of general application being enforced against them under the guise of a religious belief. As recently as a month ago, the Knapps seemed happy to take peoples’ money to perform non-religious services; the re-cast of the new entity as fundamentally religiously-committed is a new bottle but it sure seems like the wine inside the same as it ever was.

      And the City of Coeur d’Alene, also seeing the broad scope of RFRA under the Hobby Lobby interpretation and not really wanting to lose, has backed down. So now there’s a straights-only business where before there was a public accommodation, and that’s going to become a trend which seems likely to be to have a particularly pointed effect on LGBTQ citizens after this all cumulates to an appreciable degree of market exclusion, exactly as was felt by African-Americans before the civil rights law.

      I know public accommodation laws are subject to criticism, but I doubt that there is anything less bad available: what the Knapps and their lawyers have done here is one way markets behave when permitted to do so.

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      • It’s noteworthy that the original proponents of the law in question said that this wasn’t the sort of case they had in mind, and that the law is not appropriately applied to ministers.

        Yes. Like I’ve said a few times, I suspect there’s actually some *other* part of the law that gives gives an exemption to the ‘public accommodation’ laws to churches and other religious non-profits. I can’t actually prove this, because no news outlet has bothered to actually try to explain what’s going on. But if there was no such exemption, various *churches* would have (quite rightfully) sued.

        The problem here is that the Knapps have managed to create a ‘religious for-profit’, or at least something we’ve apparently decided to treat as one despite such a thing not logically existing anywhere under the law.

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      • I’m confused again. When you say “applied to ministers,” do you mean that the proponents say that the law was not meant to force ministers to perform weddings they don’t support? I thought those were not the stakes. I thought it was about whether the facilities could be rented to allow for a a supporting minister to perform a wedding. So is it that the proponents now say that the law was not meant to apply in that way to the property of any ministers? Or in any case to any ministers who are in business using their property to make a profit, at least within a business entity that is of a religious character?

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      • The city never specified whether it was referring to the ministers having to perform the ceremonies, BYOO, or something in between*.

        The Kootenai County Task Force on Human Relations, which is the organization that proposed it to begin with, said that as long as the services being performed there are by ministers who object, and are limited to wedding ceremonies, the chapel is exempt. (Presumably, if they do start inviting all sorts of other ministers, that would change. But if they perform the services themselves, or restrict it to like-minded ministers, they are exempt. Right now, as far as the KCTFHR is concerned, the law does not apply in the case of the Hitching Post.)

        * – This is what I actually suspect was going to be the case. That they didn’t have to perform the ceremony, but would have to supply someone would would.

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      • I’d say if they weren’t already in the practice of renting the facility out for BYOO weddings, then if the law was going to force them to, that would be pretty problematic.

        But if they weren’t in that practice, was the law really going to do that? What impending action concerning what activity gave rise to this, anyway/ The OP suggests none; they’re basically suing over the existence of a law that has not brought them any harm yet. The OP suggests that’s good. I’m not so sure. There was no problem with forcing religious corporations to perform religious ceremonies against their beliefs under this law until such time as one was, and one wasn’t (it seems). It’s not clear to me there was a basis to sue as if there was. But the OP suggests that the change in interpretation on these questions very plausibly encouraged this lawsuit. This is what’s referred to when people refer plaintiffs coming out of the woodwork.

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